Failure to licence a HMO held to constitute a continuing, strict liability offence

Two important issues of interpretation about s. 72(1) of the Housing Act 2004 (“the 2004 Act”) arose for consideration by the Divisional Court in the matter of R (Mohamed) v London Borough of Waltham Forest [2020] EWHC 1083 (Admin) (available here). These were: (1) whether the offence of managing or controlling an unlicensed house in multiple occupation (“HMO”) contrary to section 72(1) of the 2004 Act is a strict liability offence; and (2) whether the offence is a “continuing offence” for the purposes of calculating the time within which a prosecution must be commenced under s. 127(1) of the Magistrates’ Court Act 1980.

Andrew Byass appeared on behalf of the intervener, the Secretary of State for Housing, Communities and Local Government, to support the arguments that the s. 72 offence is a continuing offence of strict liability. The Court upheld these arguments, and dismissed the application for judicial review. In so doing, it affirmed and applied its recent judgment in Luton Borough Council v Altavon [2019] EWHC 2415 (Admin); [2020] HLR 4 which had addressed the second of the above issues and held that s. 72(1) is a continuing offence. The outcome of the judgment will be welcomed by local housing authorities in particular, by supporting continuing efforts to ensure the proper licensing of HMOs, including in appropriate cases by prosecuting those who fail to license properties when required to do so.